ECtHR – G.B. and others v. Turkey, 17 October 2019 No. 4633/15

According to Article 3 ECHR, the State must ensure the person is detained in conditions which are consistent with respect for human dignity, and the method of executing the detention cannot cause the individual to suffer distress of an intensity exceeding the unavoidable level of suffering inherent in detention. As regards minors, the Court observed that Article 37(c) CRC provides that the State must consider children’s needs when keeping them in detention.

There were already records of violations of Article 3 ECHR on account of the material conditions of detention in the Kumkapı Removal Centre, both from the National Human Rights Institution of Turkey and the CPT, which had remained unresolved. The adverse conditions of detention at this Centre were particularly unsuitable for the applicant children due to their extreme vulnerability and were in breach with international principles on the protection of children. The Court determined that the conditions of the applicants’ detention caused them distress which exceeded the unavoidable level of suffering inherent in detention.

The material conditions at the Gaziantep centre were allegedly worse. The Government had not submitted sufficient material evidence to refute the applicants’ allegations, so the Court found that there had also been a violation of Article 3 ECHR on account of the material conditions in which the applicants were detained here.

The applicants’ complaint regarding the violations of Article 3 ECHR is arguable for the purposes of Article 13 ECHR. The Court had already acknowledged that an individual application before the Constitutional Court can provide an effective remedy for grievances under Article 3 ECHR, and that remedy therefore had to be exhausted before lodging an application with the Court.

Regarding the complaints about inhuman or degrading conditions of detention, the Court had already observed that two types of relief are possible: (i) improvement of the material conditions of detention, and (ii) compensation for the damage on account of such conditions. Once the applicants were released, they should have had an enforceable right to compensation for the violation that had already occurred.

The new Foreigners and International Protection Act (Law no. 6458) does not designate any specific remedies for complaints concerning conditions of detention at foreigners’ removal centres.

The applicants lodged their applications with the Constitutional Court, and subsequently with the Strasbourg Court while they were still being detained, leaving no doubt that they sought immediate relief from the unacceptable conditions in which they were being held. No effective remedies in domestic law provided them that result.

After lodging their application with the Constitutional Court, the applicants continued to be detained in unsuitable conditions for a significant period of time. The Constitutional Court was acting as a first-instance court, so it could have been expected to show the necessary diligence in reviewing the applicants’ complaints. Instead of recognizing the inadequacy of the imprisonment conditions and compensate the applicants, it declared the applicants’ complaint inadmissible for non-exhaustion of domestic remedies, since they did not lodge an action for a full remedy before the administrative courts. They were still being detained at the time of their application to the Constitutional Court, so a purely compensatory remedy available after release could not have provided them with an effective remedy under Article 3 ECHR.

Article 3 requires States to rapidly establish, above a compensatory remedy, an effective mechanism to put an end to the kind of treatment prohibited by this Article. Otherwise, the prospect of future compensation would legitimise severe suffering and weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements. In this case, the Government did not end the ongoing violation of their rights quickly enough.
 
The ECHR noted that the detention order referred only to the mother, so the family had been arbitrarily detained. As a result, the Court held that the detention of the applicants was contrary to Article 5(1) ECHR. Moreover, the available mechanisms to challenge the family’s detention did not function effectively in these circumstances, which required diligence to ensure a prompt review of lawfulness. The absence of such diligence amounted to a violation of Article 5(4) ECHR.